U.Va. logo cannot be banned in Virginia's public schools

In Newsom v. Albemarle County School Board, the Fourth Circuit in an opinion by Senior Judge Hamilton joined by Judges Williams and Shedd reversed the denial by Judge Moon of the W.D. Va. of the plaintiff middle school student's motion for a preliminary injunction against the enforcement of his school's dress code as it prohibited messages on clothing that relate to weapons. The plaintiff wore an NRA t-shirt to school, and was told at one point he ought not to wear it.

Beginning its discussion, the Court noted that the consideration of irreparable harm in this case was intermingled with the likelihood of success on the merits. The student claimed the dress code prohibition was overbroad "because (1) it applies to nonviolent and nonthreatening images/messages related to weapons and (2) there is a dearth of evidence demonstrating that the display of images/messages related to weapons, nonviolent, nonthreatening, or otherwise, would substantially disrupt school operations or interfere with the rights of others."

The opinion wanders off into considering what all the dress code might prohibit, including the logo of the U.Va. Cavaliers: "Thus, under the 2002-2003 Jouett Dress Code, a student may not wear or carry any items bearing the State Seal of the Commonwealth of Virginia. Likewise, the symbol of the University of Virginia’s athletic
mascot—the Cavalier—is two crossed sabers. This symbol also relates to weapons. According to the Virginia Attorney General, the symbol is used throughout Charlottesville to direct visitors to the university’s football stadium and other facilities and simply to promote the university’s athletics. Ironically, Albemarle County High School, which is located across the street from Jack Jouett Middle School, uses the image of a patriot armed with a musket as its own mascot. Various clothing depicting support for the University of Virginia and Albemarle County High School by way of the schools’ mascots
would be banned under the 2002-2003 Jouett Dress Code."

The Court concluded that the policy was unconstitutional, as "[i]t excludes a broad range and scope of symbols, images, and political messages that are entirely legitimate and even laudatory."

This opinion is couched in all the right terms, and maybe even has the right outcome, but I'm not sure that I like it. It seems like sort of a sham case in the first place, since the opinion notes that since the dress code was amended, no one was doing anything to enforce it against the plaintiff, who contined to wear his NRA summer camp t-shirts from time to time. If the dress code was not going to be enforced before there was a hearing on the merits, then why not proceed to the merits in the normal fashion? I guess I'm just thinking about the school board paying all those attorney fees, perhaps ultimately for both sides in this case.